FOI Update: Are You Ready for an Information Commissioner Appeal?
09 February 2018
As FOI bodies are keenly aware, the number of FOI requests made annually continues to rise year on year. Over 30,000 FOI requests were made in 2016 – the highest ever recorded.
The number of applications to the Information Commissioner for review continues to rise also. 577 applications were made in 2016, with 440 cases accepted for review.
The bad news for FOI bodies is that the risk of an FOI decision being reviewed by the Commissioner is higher now than ever. The good news is that the Commissioner continues to publish guidance notes to assist FOI bodies in understanding his approach when reviewing decisions. The most recent of these relate to “Section 37: Personal information” (August 2017), and “Section 38: Procedure in relation to Certain FOI Requests to which Section 35, 36 or 37 Applies” (September 2017).
The exemption for personal information in section 37 is probably one of the most important, and commonly used, exemptions in FOI. In addition, the third party consultation procedure in section 38 is undoubtedly one of the most complex and challenging procedural requirements imposed on FOI bodies. Therefore, these guidance notes are welcome additions to FOI know-how generally. The following are some of the practical and technical tips to be gleaned.
- If “practicable”, FOI bodies are required to remove exempt information from a record and release the remainder, unless the remaining record would be misleading (section 18). However, the Commissioner is not generally in favour of cutting or ‘dissecting’ records in order to extract particular sentences or occasional paragraphs for part-release. The Commissioner’s view is that “practicable” means taking a reasonable and proportionate approach in determining the level of information to be removed in order to grant access to parts of records.
- The definition of personal information in section 2 excludes certain information relating to current or former office holders or staff of FOI bodies. This includes his/her name, information relating to his/her office or functions and the terms upon which, and subject to which, he/she holds or held that office or position. However, the Commissioner emphasises that this exclusion does not deprive office holders or staff of FOI bodies of the right to privacy generally. He also clarifies that the exclusion does not extend to records relating to the individual’s competence or ability in his/her capacity as a member of staff of the FOI body. Such records will constitute the individual’s personal information.
- When dealing with requests for records relating to complaints/investigations into the conduct of a named employee, the Commissioner considers that those records would, if they existed, constitute his/her personal information. Further, confirming whether such records about that employee exist also constitutes his/her personal information. Therefore, the ‘neither confirm nor deny’ provision in section 37(6) may apply to such requests.
- In relation to “joint personal information”, the Commissioner confirms that, if records contain personal information about the requester which is closely intertwined with, and cannot feasibly be separated from, information relating to (an)other individual(s), it is joint personal information and the exemption under section 37(7) must be considered.
- When considering records relating to complaints, allegations and investigations, the Commissioner acknowledges that:
- these records or files are likely to contain joint personal information of the parties to the complaint, allegation or investigation; and
- the fact that the requester may have created, or sent, some of the records on a file, or is otherwise aware of certain third-party personal information contained in records, does not mean that he/she necessarily has any entitlement to them under FOI.
- Where an FOI request seeks access to both records to which section 38 does not apply (non-third party records), and records to which section 38 does apply (third party records), the Commissioner considers that FOI bodies should split the request and separate the relevant records. The third-party records follow the third party consultation procedure and parties dissatisfied with the FOI body’s decision on such records can apply directly to the Commissioner for review. Meanwhile, the non-third party records are processed in the normal way and, if access is refused, the requester can apply for an internal review of that decision.
The Commissioner’s guidance notes provide welcome assistance to FOI bodies in understanding his approach to reviewing decisions. This now includes guidance notes on all 13 exemption provisions under Part 4 of the FOI Act. Unfortunately, this is not the end of the matter as the application of each exemption provision is still highly dependent on the facts and contents of the particular records at issue.
It does, however, provide a useful framework for FOI bodies. If we can provide further assistance in this regard, contact a member of our Freedom of Information team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.